Marginal note:Redelivery on deposit of security

• 34. (1) If a thing has been seized under section 32, the Federal Court may, with the consent of the Minister, order redelivery of the thing or delivery of the proceeds realized from a sale of any perishable cargo under subsection 33(3) to the person from whom the thing was seized if security in the form of a bond, in an amount and form satisfactory to the Minister, is given to the Minister.

• Marginal note:Seized vessel etc., to be returned unless proceedings instituted

  (2) Anything referred to in subsection (1) that has been seized under section 32, or any security given to the Minister under subsection (1), shall be returned or paid to the person from whom the thing was seized within 30 days after the day of its seizure unless, before the expiry of that period, proceedings are instituted in respect of an offence under this Act alleged to have been committed by the owner of the thing.

Detention in Canada

Marginal note:Seizure

• 35. (1) Whenever, during the course of an inspection or search, an enforcement officer has reasonable grounds to believe that an offence under this Act has been committed, the enforcement officer may seize and detain anything

  • (a) by means of or in relation to which the enforcement officer reasonably believes the offence occurred; or

  • (b) that the enforcement officer reasonably believes will afford evidence of the offence.

• Marginal note:Limitation

  (2) An enforcement officer shall not seize anything under subsection (1) unless the thing is required as evidence or for purposes of analysis, or unless the enforcement officer is of the opinion that the seizure is necessary in the public interest.

• Marginal note:Notice of contravention

  (3) An enforcement officer who has seized and detained a thing under subsection (1) shall, as soon as practicable, advise the person in whose possession it was at the time of the seizure of the provision of this Act or the regulations that the enforcement officer believes has been contravened.

• Marginal note:Detention and release

  (4) A thing seized under subsection (1) or section 32, other than a vessel or aircraft, shall not be detained

  • (a) after the owner of the thing or the person in whose possession it was at the time of the seizure applies to the enforcement officer or to the Minister for its release and the enforcement officer or the Minister is satisfied that it is not necessary in the public interest to continue to detain the thing or that the thing is not required as evidence or for purposes of analysis; or

  • (b) after the expiry of 90 days after the day of its seizure, unless before that time

    • (i) the thing has been forfeited under section 40,

    • (ii) proceedings have been instituted in respect of the contravention in relation to which the thing was seized, in which case it may be detained until the proceedings are finally concluded, or

    • (iii) the Minister has, in accordance with section 36, served or made reasonable efforts to serve notice of an application for an order extending the period during which the thing may be detained.

• Marginal note:Storage of seized thing

  (5) A thing seized by an enforcement officer under subsection (1) or section 32, other than a vessel, aircraft, platform or other structure, shall be kept or stored in the place where it was seized except if

  • (a) in the opinion of the enforcement officer,

    • (i) it is not in the public interest to do so, or

    • (ii) the thing seized, or a sample of it, is required as evidence and removal and storage of the thing seized are necessary to ensure that the thing or sample will be available as evidence in any related proceedings, or

  • (b) the person in whose possession it was at the time of its seizure or the person entitled to possession of the place requests the enforcement officer to have it removed to some other place,

  in which case, the thing may be removed to and stored in any other place at the direction of or with the concurrence of an enforcement officer and at the expense of the person who requested that it be removed.

• Marginal note:Interference with seized thing

  (6) Unless authorized by an enforcement officer, no person shall remove, alter or interfere in any way with a thing seized and detained by an enforcement officer under subsection (1) or section 32, but an enforcement officer shall, at the request of the person from whom it was seized, allow that person or any person authorized by that person to examine it and, if practicable, provide a sample or copy of it to that person.

Marginal note:Application to extend period of detention

• 36. (1) If proceedings referred to in paragraph 35(4)(b) have not been instituted in respect of the contravention in relation to which a thing was seized under section 32 or subsection 35(1), the Minister may, before the expiry of 90 days after the day of its seizure and on serving prior notice in accordance with subsection (2) on the owner of the thing or on the person who at the time of the seizure was in possession of it, apply to a provincial court judge, as defined in section 2 of the Criminal Code, within whose territorial jurisdiction the seizure was made for an order extending the period during which it may be detained.

• Marginal note:Notice

  (2) The notice shall be served by personal service at least five clear days before the day on which the application is to be made, or by registered mail at least seven clear days before that day, and shall specify

  • (a) the provincial court in which the application is to be made;

  • (b) the place where and the time when the application is to be heard;

  • (c) the thing seized in respect of which the application is to be made; and

  • (d) the grounds on which the Minister intends to rely to show why there should be an extension of the period during which the thing seized may be detained.

• Marginal note:Order of extension granted

  (3) If, on the hearing of an application made under subsection (1), the judge is satisfied that the thing seized should continue to be detained, the judge shall order

  • (a) that the thing be detained for any additional period and on any conditions relating to the detention for that additional period that the judge considers proper; and

  • (b) on the expiry of the additional period, that the thing be restored to the person from whom it was seized or to any other person entitled to its possession unless, before the expiry of the additional period, an event referred to in subparagraph 35(4)(b)(i), (ii) or (iii) has occurred.

• Marginal note:Order of extension refused

  (4) If, on the hearing of an application made under subsection (1), the judge is not satisfied that the thing seized should continue to be detained, the judge shall order that, on the expiry of 90 days after the day of its seizure, it be restored to the person from whom it was seized or to any other person entitled to its possession unless, before the expiry of that period, an event referred to in subparagraph 35(4)(b)(i) or (ii) has occurred.

Detention of Canadian Vessels

Marginal note:Detention

• 37. (1) If an enforcement officer has reasonable grounds to believe that

  • (a) a Canadian vessel has committed an offence under this Act, or

  • (b) an authorized representative or master of a Canadian vessel has committed an offence under this Act and that a Canadian vessel was used in connection with the commission of the offence,

  the enforcement officer may make a detention order in respect of the vessel.

• Marginal note:Order in writing

  (2) The detention order shall be in writing and be addressed to all persons at any port in Canada where the vessel to which the order relates is or will be who are empowered to give a clearance in respect of the vessel.

• Marginal note:Notice of detention order

  (3) Notice of the detention order shall be served on the master of the vessel in respect of which the order is made.

• Marginal note:Duty of authorized representative or master

  (4) If the notice has been served on the master of the vessel, the authorized representative or master of the vessel shall not give an order for the vessel to go into an area of the sea referred to in paragraph 122(2)(f) or (g) of the Canadian Environmental Protection Act, 1999 during the term of the detention order.

• Marginal note:Duty of persons empowered to give clearance

  (5) Subject to subsection (6), no person to whom a detention order is addressed shall, after notice of the order is received by the person, give clearance in respect of the vessel to which the order relates.

• Marginal note:When clearance given

  (6) A person to whom a detention order is addressed and who has received notice of the order may give clearance in respect of the vessel to which the order relates if

  • (a) the authorized representative or master of the vessel

    • (i) has not, within 30 days after the day on which the order was made, been charged with the offence that gave rise to the order, or

    • (ii) has, within 30 days after the day on which the order was made, been charged with that offence and appears in Canada to answer to the charge;

  • (b) security for payment of the maximum fine that might be imposed as a result of a conviction of the person charged with that offence and of costs related to proceedings in connection with the charge, or security for payment of any lesser amount that is approved by the Minister or a person designated by the Minister for the purpose, is given to Her Majesty in right of Canada; or

  • (c) proceedings in respect of the alleged offence that gave rise to the making of the detention order are discontinued.

Assistance to Enforcement Officers and Analysts

Marginal note:Right of passage

38. An enforcement officer, analyst or any other person may, while carrying out their functions under this Act, enter on and pass through or over private property without being liable for exercising that power or without the owner of the property having the right to object to that use of the property.

Marginal note:Assistance

39. The owner or the person in charge of a place entered by an enforcement officer or analyst under section 32, and every person found in the place, shall

• (a) give the enforcement officer or analyst all reasonable assistance to enable the officer or analyst to carry out their functions under this Act; and

• (b) provide the enforcement officer or analyst with any information with respect to the administration of this Act that the enforcement officer or analyst may reasonably require.

Forfeiture in Canada

Marginal note:Forfeiture on consent

• 40. (1) If an enforcement officer has seized a thing under section 32 or subsection 35(1) and the owner or person who was in lawful possession of it at the time of the seizure consents in writing at the request of the enforcement officer to its forfeiture, it is forfeited to Her Majesty in right of Canada.

• Marginal note:Disposal or destruction

  (2) The Minister may dispose of or destroy a thing forfeited under subsection (1) and, if the Minister so directs, the costs of the disposal or destruction shall be paid by the owner or the person who was in lawful possession of the thing at the time it was seized.

Marginal note:Forfeiture by order of court

• 41. (1) Subject to sections 42 and 43, if a person is convicted of an offence under this Act and anything seized under section 32 or subsection 35(1) is then being detained,

  • (a) the thing is, on the conviction and in addition to any punishment imposed for the offence, forfeited to Her Majesty in right of Canada if the court so directs, in which case

    • (i) the Minister may dispose of or destroy the thing, and

    • (ii) the costs of the forfeiture and disposal or destruction shall be paid by the offender; or

  • (b) the thing shall, on the expiry of the period for taking an appeal from the conviction or on the final conclusion of the proceedings, be restored to the person from whom it was seized or to any other person entitled to its possession on any conditions that may be imposed by order of the court and that, in the opinion of the court, are necessary to avoid the commission of a further offence under this Act.

• Marginal note:Things deemed not to have been seized

  (2) For the purpose of subsection (1), anything released from detention under paragraph 35(4)(a) or (b) is deemed not to have been seized under section 32 or subsection 35(1).

Marginal note:Court may order forfeiture

42. If the authorized representative of a Canadian vessel or the registered owner of a Canadian aircraft has been convicted of an offence under this Act, the convicting court may, if the vessel or aircraft was seized under section 32 or subsection 35(1), in addition to any other penalty imposed, order that the vessel or aircraft, or any security given under subsection 34(1) be forfeited, and on the making of the order, the vessel or aircraft or security is forfeited to Her Majesty in right of Canada.

Marginal note:Disposal of forfeited vessel, aircraft, etc.

• 43. (1) If proceedings referred to in subsection 34(2) are instituted within the period referred to in that subsection and, at the final conclusion of those proceedings, any vessel or aircraft, or any security given under subsection 34(1), is ordered to be forfeited, it may be disposed of as the Governor in Council directs.

• Marginal note:Return of seized vessel, etc., where no forfeiture ordered

  (2) If a thing has been seized under section 32 and proceedings referred to in subsection (1) are instituted, but the thing is not, at the final conclusion of the proceedings, ordered to be forfeited, it must be returned to the person from whom it was seized, the proceeds of any sale of the cargo under subsection 33(3) must be paid to that person and any security given to the Minister under subsection 34(1) must be returned to that person.

• Marginal note:Exception

  (3) If, at the conclusion of proceedings referred to in subsection (1), the person from whom the thing was seized is convicted of an offence arising out of a contravention of this Act or the regulations, the thing and any cargo or the proceeds or security may be retained until the fine is paid, or the thing and any cargo may be sold under execution in satisfaction of the fine, or the proceeds realized from the sale of the cargo or the security or any part of the cargo or security may be applied in payment of the fine.

Marginal note:Application by person claiming interest

• 44. (1) If a thing has been ordered to be forfeited under this Act, any person, other than a person who was a party to the proceedings that resulted in the order, who claims a right or an interest in the thing as owner, holder of a security established on property or other right in rem or holder of any other claim under Canadian law may, within 30 days after the day on which the thing is ordered to be forfeited, apply by notice in writing to the Federal Court for an order under subsection (5).

• Marginal note:Date of hearing

  (2) The Federal Court must fix a day for the hearing of the application.

• Marginal note:Notice

  (3) An applicant for an order under subsection (5) must, at least 30 days before the day fixed under subsection (2), serve a notice of the application and of the hearing on the Minister and on all other persons claiming a right or an interest in the thing that is the subject-matter of the application as owner, holder of a security established on property or other right in rem or holder of any other claim under Canadian law of whom the applicant has knowledge.

• Marginal note:Notice of intervention

  (4) Each person, other than the Minister, who is served with a notice under subsection (3) and who intends to appear at the hearing of the application to which the notice relates must, at least 10 days before the day fixed for the hearing, file a notice of intervention in the Registry of the Federal Court and serve a copy of the notice on the Minister and on the applicant.

• Marginal note:Order declaring nature and extent of interests

  (5) If, on the hearing of an application under this section, the Federal Court is satisfied that the applicant, or the intervenors, if any, or any of them,

  • (a) is innocent of any complicity in any conduct that caused the thing to be subject to forfeiture and of any collusion in relation to any such conduct, and

  • (b) exercised all reasonable care in respect of the persons permitted to obtain possession and use of the thing so as to be satisfied that it was not likely to be used contrary to the provisions of this Act or, in the case of a holder of a security established on property, other than the holder of a maritime lien or statutory right in rem, that the applicant or intervenor exercised such care with respect to the person who gave the property as security,

  those of the applicant and the intervenors in respect of whom the Court is so satisfied are entitled to an order declaring that their rights or interests are not affected by the forfeiture and declaring the nature and extent of each of their rights or interests and the ranking among them.

• Marginal note:Additional order

  (6) If an order is made under subsection (5), the Court may, in addition, order that the thing to which the rights or interests relate be delivered to one or more of the persons found to have a right or an interest in it or that an amount equal to the value of each of the interests so declared be paid to the persons found to have those interests.

INSPECTIONS IN THE ANTARCTIC

Marginal note:Designation of inspectors

• 45. (1) The Minister may designate as an inspector, for the purpose of this Act or any provision of this Act, any person or any member of a class of persons who, in the Minister’s opinion, is qualified to be so designated.

• Marginal note:Limits

  (2) The Minister may, including on the request of the Minister of Foreign Affairs, limit the powers that may be exercised by an inspector under this Act.

• Marginal note:Production of certificate

  (3) The Minister must provide every inspector with a certificate of designation that includes any limits specified under subsection (2). On entering any place, the inspector must, if so requested, produce the certificate to the person in charge of the place.

Marginal note:Powers of inspectors

• 46. (1) Subject to subsections (2) and (6), for the purposes of this Act, an inspector may, at any reasonable time, enter any place in the Antarctic in which the inspector believes, on reasonable grounds, there is anything to which this Act applies or any document relating to its administration.

• Marginal note:Dwelling-houses

  (2) An inspector may not enter a dwelling-house without the consent of the occupant.

• Marginal note:Stopping and detaining conveyances

  (3) For the purposes of this Act, an inspector may, at any reasonable time, direct that any of the following be moved to a place where an inspection can be carried out and may, for a reasonable time, detain any of the following:

  • (a) a Canadian vessel or Canadian aircraft in the Antarctic; or

  • (b) any other conveyance in the Antarctic that is owned by a Canadian except a vessel or aircraft that is not a Canadian vessel or Canadian aircraft.

• Marginal note:Powers in relation to vessels, etc.

  (4) Subject to subsection (2), for the purposes of this Act, an inspector may, at any reasonable time,

  • (a) board a Canadian vessel or Canadian aircraft in the Antarctic; or

  • (b) travel on the vessel or aircraft.

• Marginal note:Powers of inspectors

  (5) In carrying out an inspection of a place under this section, an inspector may exercise any of the powers referred to in subsections 30(9), (11) and (12).

• Marginal note:Foreign ownership

  (6) An inspector may not exercise any powers under this section in respect of any station, installation, equipment, platform anchored at sea, shipping container or conveyance (other than a Canadian vessel or Canadian aircraft) that is owned by a person who is not a Canadian unless the inspector first obtains the consent of the person in charge of the station, installation, equipment, platform, container or conveyance.

• Marginal note:Analysts

  (7) An analyst may, for the purposes of this Act, accompany an inspector who is carrying out an inspection of a place under this section, and the analyst may, when accompanying the inspector, enter the place and exercise any of the powers referred to in subsection (5).

• Marginal note:Assistance

  (8) The owner of a place or a Canadian or permit holder in charge of a place being inspected under this section, and every Canadian or permit holder found in the place, shall

  • (a) give the inspector or analyst all reasonable assistance to enable the inspector or analyst to carry out their functions under this Act; and

  • (b) provide the inspector or analyst with any information with respect to the administration of this Act that he or she may reasonably require.